An Uzbekistan refugee charged with conspiring with foreign terrorists accuses U.S. intelligence agents of using a “backdoor” strategy to violate his privacy rights and those of millions of people, including virtually every U.S. citizen who corresponds with anyone overseas.

Defendant Jamshid Muhtorov of Aurora filed a motion seeking to toss out evidence collected against him through warrantless wiretaps. He also is seeking to view wiretap evidence collected against him that has been sealed for national security reasons.

Muhtorov’s arguments could have far-reaching consequences if, as he claims, federal intelligence agents are routinely violating Fourth Amendment privacy rights on a massive scale. Documents released by the government in Muhtorov’s case have, piece by piece, defined a previously secretive intelligence-gathering strategy.

Intelligence agents have routinely scanned millions of e-mail and phone communications of U.S. citizens, even though it is illegal to directly tap those contacts without a warrant, his motion says.

Muhtorov’s case was the first in which federal prosecutors acknowledged using warrantless wiretaps in criminal investigations and could lead to a court challenge of a law passed six years ago that spawned the practice.

The case sheds further light on practices revealed by former National Security Agency analyst Edward Snowden, who has shared NSA documents detailing tens of thousands of intercepted e-mails and instant-message conversations.

Snowden’s revelations revealed “the existence of a government operation aimed at collecting, storing, reviewing, and using the personal and political communications of millions of American people and millions of people abroad,” said a motion filed Friday by attorneys for Muhtorov’s co-defendant Bakhtiyor Jumaev. “A global maelstrom has erupted as a result.”

Warrantless wiretapping was initiated after passage in 2008 of the Foreign Intelligence Surveillance Act’s Amendments Act. It allows agents to tap phone calls and e-mails without a specific warrant only if it targets a foreigner living overseas. In practice, however, viewing millions of messages from foreigners enables agents to simultaneously violate privacy rights of U.S. citizens receiving those messages — in a backhanded way, Muhtorov argues.

The act “authorizes exactly the suspicionless surveillance the Constitution was meant to forbid,” according to his motion.

The government claimed in a May motion in Muhtorov’s case that its surveillance affects only a fraction of 1 percent of the millions of Internet users and could not be called “bulk” surveillance. It defended its use of warrantless wiretaps, claiming its agents have a “matrix of safeguards” to prevent abuse, do not target U.S. citizens and save an untold number of lives. Ultimately, the interests of national security outweigh privacy interests of U.S. citizens when they communicate “with non-U.S. persons,” they argued.

The government indicated that the Fourth Amendment “generally does not apply to non-U.S. persons abroad.” It argues that intelligence agents can’t predict whom terrorists will contact and it’s possible it will be a U.S. citizen. Uncovering such ties could help prevent a terror attack, its motion says. Incidental contacts are not illegal, prosecutors argued.

If agents were forced to obtain a warrant before monitoring U.S. citizens, it would be like requiring a warrant for each foreign target, impeding agents who must operate with the “utmost, stealth, speed and secrecy.” Al-Qaeda terrorists could invoke the U.S. Constitution to evade U.S. surveillance, the motion said.

Muhtorov, arrested in early 2012, is accused of providing support to the Islamic Jihad Union terrorist group based in Uzbekistan. The evidence against Muhtorov consists largely of e-mails and telephone calls.

If Muhtorov was identified through a program that violates his constitutional rights, then evidence collected against him must be suppressed, his attorneys argue.

But to do that, his attorneys are seeking access to evidence they’ve never seen because the government bars him, for national security reasons.

So far, U.S. District Judge John Kane has been the only one not involved in the investigation to view the material in his chambers.

Muhtorov claims that the way U.S. intelligence agents implement the FISA act today is much different than before the act was passed six years ago.

Through “backdoor searching,” agents have created a whole new database with names, e-mail addresses and other identifying information of U.S. citizens. These are people not previously identified as criminal suspects or foreign agents, the defendant claims.

“To accept the government’s arguments is to accept that the National Security Agency may collect Americans’ international communications, individually or in bulk, ‘incidentally’ or directly, without having to answer to the Constitution,” according to Muhtorov’s motion.

The U.S. Supreme Court has never ruled on the constitutionality of the Foreign Intelligence Surveillance Act.

A case brought against the government was thrown out last year because plaintiffs couldn’t show they had been the subject of warrantless eavesdropping. A judge indicated that the government would need to confirm it is wiretapping before FISA could be challenged.

In making its case, Muhtorov is attempting to use President Barack Obama’s own words against the government.

In 2008, when Obama was a U.S. senator, he proposed an amendment to the FISA act that would have prohibited the government from tapping communications without a warrant if it knew it involved a U.S. citizen. His amendment failed.

Kirk Mitchell is a general assignment reporter at The Denver Post who focuses on criminal justice stories. He began working at the newspaper in 1998, after writing for newspapers in Mesa, Ariz., and Twin Falls, Idaho, and The Associated Press in Salt Lake City. Mitchell first started writing the Cold Case blog in Fall 2007, in part because Colorado has more than 1,400 unsolved homicides.

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